o perpetuated the “incorrect facts” in the story written by Marianne Thamm, and was a “deliberate attempt” to make the programme look like it was first aired for the then upcoming ANC conference;

o deliberately attempted to defame her by using the term “brown envelope journalism”, implying that she had destroyed the SABC’s credibility and that she was corrupt; and

· headline falsely and misleadingly put the blame on her, while the onus was on the public broadcaster to inform its viewers that it was a sponsored programme – an omission for which the SABC took responsibility.

The text

The opinion piece was about a two-hour interview on SABC 3 with Dlamini (first aired on 7 December 2017, and again on December 18), for which the DSD has reportedly paid the public broadcaster. The interview was with Anele Mdoda (host of the show Real Talk with Anele).

Harber’s view was that, paying for this interview, South African journalism has sunk to one of its lowest points ever.

He stated that Dlamini had:

· admitted paying the SABC for the interview which was aired in the middle of crucial ANC leadership battles; and

· described this as routine practice and “an investment in the public broadcaster” for which she would not apologise.

“What she has done is destroy the public broadcaster’s journalistic credibility, undermined its integrity, and compromised its professionalism. She has certainly destroyed the credibility of SABC’s Real Talk show and its presenter Anele Mdoda. Even if Mdoda was not instructed to go soft on Dlamini, who was after all a client rather than an interviewee, her credibility is blown,” he argued.

He noted that the public had not been informed that the interview had been paid for, which had been “in contravention of every principle of journalism, every code of conduct, every professional rule – including the SABC’s own editorial charter, the industry code and the Broadcasting Act…”

Harber argued that Dlamini had encouraged an official form of the “brown envelope journalism”, the practice of paying for news coverage. “I have never heard of it before as official, above-the-table government policy. This is now a South African innovation,” he stated.

He concluded, “Under financial pressure and without firm editorial leadership, the public broadcaster has clearly compromised itself. To rebuild its credibility and re-establish its integrity, it needs to clarify and enforce its rules and guidelines. The regulator, Icasa, needs to hold an inquiry into brown envelope practices and ways to enforce the law and the industry code. And Parliament needs to rein in ministers and departments that undermine the SABC and its integrity.”

The arguments

Regarding the complaint that there was “a deliberate attempt to make the programme look like it was broadcast for the ANC conference”, Harber says he merely stated that the interview was broadcast “in the middle of crucial ANC leadership battles” – which was true, whether or not the reference was to the original broadcast (on December 7) or a repeat thereof (on December 18), or whether it was in the middle of the ANC conference or shortly before it.

He argues that he was expressing his opinion that Dlamini has undermined the credibility of the SABC, and states that the text was clearly marked as an opinion piece. He adds that he based his opinion on an uncontested fact – payment was made for the interview, which was contrary to both the SABC’s Editorial Code and government policy in the form of the GCIS Handbook for Government Communicators.

“[It] is my view that this undermined the public broadcaster’s credibility,” he submits.

Besides, he adds, Dlamini has added significantly to the process of discrediting the SABC when she said that this was a “routine practice”, implying that the SABC and government communicators regularly act contrary to policy.

Harber argues that the onus was not only on the SABC to make it known that the interview was paid for, as paying for an interview was in contravention of government policy (as set out in the GCIS Handbook for Communicators) – therefore, Dlamini also had an obligation to account for why she acted in contravention of government policy and rules.

“By not insisting that it be made clear that this was sponsored, or intervening the first time the interview was played, the Minister was undermining SABC credibility. If payment for an interview is wrong, and against policy, then the person who makes the payment is as guilty as the person who takes it,” he argues.

Harber contends that Dlamini’s payment of public money for personal promotion during a leadership contest was her responsibility and the onus was on her to clarify and explain it.

He also defends his allegation that the deal amounted to a “new form of brown envelope journalism”, as the DSD has paid for coverage. He denies, however, he said that the Minister was corrupt.

Harber summarises his argument by saying that the following facts were undisputed and were at the crux of his piece:

· The interview was paid for;

· The audience was not informed of this; and

· This was contrary to SABC Editorial Policy and Government policy for communicators.

He argues, “Based on these facts, I wrote an opinion piece that was both reasonable and fact-based. This clearly falls within the definition of fair comment.”

He adds that Oliphant contacted him after the article. He says he made it clear that if she could show any factual inaccuracies, he would quickly correct and apologise for them. However, he says, she provided no specifics of what he might have got wrong.

In response, Dlamini reiterates that the article was based on an article which was factually incorrect, and adds that Harber made no attempt to properly verify his information.

Oliphant says an SABC client cannot be held responsible for what happened – the public broadcaster sold airtime; the DSD bought airtime.

“Brown envelope means corruption and [Harber] deliberately put every blame on the Minister who had nothing to do with it,” she adds.

Analysis

The information on which Harber based his piece, was substantially true – the DSD had paid for the interview, it had been presented as news (and not as an advertorial), and this was against government policy (in my copy of that policy, it is prohibited in Section 10.5.3 of the Handbook and not in 10.5.4, as Harber has indicated).

That section says, “Government departments should not pay the media for any form of editorial coverage. We should achieve reputation-enhancing, earned media coverage through the newsworthiness of activities and announcements.”

Fact of the matter is that, whatever the intentions were of the parties concerned, the DSD has paid money for a programme which was presented as news.

Section 10.5.5 of the Handbook does provide for payment of advertorials, though. It reads, “[An] advertorial (advertisement + editorial = advertorial) is a paid-for media space. The difference, however, is that it appears to the reader as news copy, although branded as ‘advertorial’. Although creating the effect of greater credibility, advertorials still carry a high cost factor and, where they are detected, an image of low credibility…”

The operative words here are “advertorials…where they are detected … [still carry] an image of low credibility”. The point is that it was not “detected” at the time, as the advertorial (which the interview amounted to) was presented as a news item.

The question is on whom the onus rested to clarify this. Surely, firstly on the SABC, as Harber pointed out – but it was also on Dlamini, as he argues correctly.

If the Minister did not know at the time of the interview that viewers were not informed that the airtime had been paid for (which is possible), I would not have expected Harber to blame her for tarnishing the SABC’s credibility if she afterwards explained that she did not know, corrected the situation, and apologised for it. This, she did not do – hence Harber’s criticism.

I cannot blame Harber for using the phrase “brown envelope”, as money was indeed paid for what was presented as a news item; I also agree that he did not accuse anybody of corruption.

Let me reiterate that it is not in my mandate to say whether Harber was right or wrong – my task is merely to ensure that his piece was not in breach of Section 7 of the Press Code.

This section, headlined Protected Comment, reads in full:

7.1 The media shall be entitled to comment upon or criticise any actions or events of public interest.

7.2. Comment or criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it:

7.2.1. expresses an honestly-held opinion;

7.2.2. is without malice;

7.2.3. is on a matter of public interest;

7.2.4. has taken fair account of all material facts that are substantially true; and

7.2.5. is presented in such manner that it appears clearly to be comment.

As Harber has adhered to all the conditions as set out in Sections 7.2.1 to 7.2.4, my only conclusion can be that he was not in breach of the Press Code – even if Dlamini thinks his opinion was extreme, unjust, unbalance, exaggerated and prejudiced.

Finding

The complaint is dismissed.

Appeal

The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.